ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division (Division) upon the request of the Petitioner Vicky Clark,
d/b/a The Paradise Game Room for a contested case hearing pursuant
to S.C. Code Ann. §61-4-520 et seq. (Supp. 2001). The Petitioner seeks an on-premises beer and wine permit for the
location at 318 West Elizabeth Street, Pageland, South Carolina. This matter is presently before the Division because of a
protest by concerned citizens concerning the suitability of the location. The Respondent moved to be excused since but for
the protests they would have issued the permit and license. This motion was denied. After notice to all parties and
Protestants, a hearing was conducted on September 9, 2002, at the Division in Columbia, South Carolina. At the hearing,
the parties and several Protestants were present.
FINDINGS OF FACT
Having observed the testimony of the witnesses and exhibits presented at the hearing and having closely passed upon their
credibility, I make the following Findings of Fact by a preponderance of the evidence:
- The Petitioner seeks an on-premises beer and wine permit for the location known
as The Paradise Game Room, located at 318 West Elizabeth Street, Pageland, South Carolina.
2. The Respondent, South Carolina Department of Revenue, determined that the
location and the Petitioner met all statutory requirements and would have granted the permit but for the protests as to
suitability of the location.
- The location is in a rural area of Pageland that is a mixture of residential and
commercial establishments. The Petitioner intends to have an arcade and pool room at the proposed location and to run a
family-oriented business. She has set up an after-school program from 3-6 PM to provide a place for the children of the
community to gather to play games after school. The Petitioner has stated that she will likely hire security guards to help
patrol the establishment. She will not serve beer or wine while the children are present.
4. There are currently other facilities in the area that serve alcohol. This location has
been licensed in the past for alcohol sales. This particular location has had problems in the past with violent crimes, but
not during the time the Petitioner has owned her business.
5. Residents that live near the proposed location oppose the permit. They fear violence
will occur at the game room and spill over into their community. They have had problems in the past with noise and
violence. They are concerned about the number of children in the area and the suitability of this type of establishment
serving beer and wine where children are present. Therefore, they believe the location is unsuitable for a permit.
6. The Petitioner has taken steps to counteract the problems this location has dealt with
in the past. She has trimmed the foliage around the building, and the building is well lit. The view of the building is no
longer obstructed from the street.
7. The applicant is of good moral character. The State Law Enforcement Division's
criminal background investigation revealed no criminal violations.
8. The Petitioner is at least twenty-one years of age, a U.S. citizen, and citizen of the
State of South Carolina, and has maintained her principal residence in the State for at least thirty days prior to the
application.
9. Notice of the application appeared in The Pageland Progressive Journal, a
newspaper of general circulation in the area of the proposed location, once a week for three consecutive weeks and notice
was posted at the proposed location for fifteen days.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:
1. The South Carolina Administrative Law Judge Division has jurisdiction over this matter pursuant to S.C. Code Ann. §
61-2-260 (Supp. 2001).
2. The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the
agency charged with rendering that decision. Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct.
App. 1984).
3. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness
or suitability of the proposed business location of an applicant who is seeking a permit to sell beer and wine. Fast Stops,
Inc., v. Ingram, 276 S.C. 593, 281 S.E.2d 119 (1981); Ronald F. Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316
S.E.2d 705 (Ct. App. 1984) (beer and wine permit).
4. It is also the fact finder's responsibility to judge the demeanor and credibility of the witnesses and determine the
relevance and weight of any testimony offered.
5. The determination of suitability of location is not necessarily a function solely of geography. It involves an infinite
variety of considerations related to the nature and operation of the proposed business and its impact on the community
within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). Any evidence adverse to the
location may be considered. Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the
Judge may consider whether there have been law enforcement problems in the area. Palmer v. South Carolina ABC
Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Also, the Judge may consider the proximity or the absence of
other licensed locations in the immediate vicinity, as well as the existence of small children in the area.
6. In considering the suitability of a location, it is relevant to consider the previous history of the proposed location and to
determine whether the testimony in opposition to a permit consists of opinions and conclusions or is supported by facts.
Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
7. Without sufficient evidence of an adverse impact on the community, the application must not be denied if the statutory
criteria are satisfied. The fact that a Protestant objects to the issuance of a permit is not a sufficient reason alone to deny
the application. 48 C.J.S. Intoxicating Liquors § 119 (1981).
8. S.C. Code Ann. § 61-4-525 (Supp. 2001) provides that a person residing in the county in which a beer and wine permit is
requested to be granted, or a person residing within five (5) miles of the location, may protest the issuance of the permit if
he files a written protest.
9. Permits and licenses issued by the State are not rights or property, but are rather privileges granted in the exercise of the
police power of the State. See Feldman v. South Carolina Tax Comm'n, 201 S.C. 49, 26 S.E.2d 22 (1943).
10. After considering all the relevant factors, I find that the location is suitable for the on-premises sale of beer and wine,
with the following restrictions. There shall be no live music, there shall be no sales of beer or wine prior to 9:00 PM, and
the establishment must close by midnight. There is nothing in the record to indicate that the Petitioner would operate her
business in an unlawful manner.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the South Carolina Department of Revenue grant the Petitioner's application for an on-premises beer and
wine permit, with the following restrictions:
1. There shall be no live music allowed in or on the premises;
2. There shall be no sales of beer or wine prior to 9:00 PM;
3. The establishment must cease selling beer and wine by midnight and must close by 1:00 AM.
AND IT IS SO ORDERED.
___________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
January 10, 2003
Columbia, South Carolina |
